A Blog of Members of the Administrative Law and Regulatory Practice Section of the American Bar Association

Wednesday, April 10, 2013

D.C. Circuit Declines Review of ALJ Mine Safety Citation

by Katie Kennedy

The
U.S. Court of Appeals for the D.C. Circuit recently declined review of an
ALJ decision citing Excel Mining, LLC ("Excel") for violating the Federal Mine Safety and
Health Act of 1977, 30 U.S.C. § 815(d). Excel Mining, LLC v. Dep't of Labor,
2013 U.S. App. LEXIS 5261, 1, 2013 WL 1155362 (D.C. Cir.
Mar. 15, 2013). The
mining company, Excel Mining LLC, argued that the ALJ's finding of only
"moderate negligence" for the purposes of the monetary penalty calculation
precluded his finding of an "unwarrantable failure" under 30 U.S.C.S. § 814(d)
because a finding of an "unwarrantable failure" required "more than ordinary
negligence." The company brought this
case before the D.C. Circuit and the judges entered order on March 15, 2013.
The
court reviewed the legal conclusions of the ALJ de novo and his findings of fact
for substantial evidence.The court rejected the mining company's argument because
a finding of "moderate negligence" did not foreclose a finding of an
"unwarrantable failure."

The
underlying case involved a Petition for Assessment of Civil Penalty filed by the
Secretary of Labor pursuant to30 U.S.C. § 815(d). 34 FMSHRC 99. It alleged that Excel is
liable for a single 104(d)(1) violation n1 of the Secretary's Mandatory Safety
Standards (30 C.F.R. § 75.220) for Underground Coal Mines. The agency sought a
total civil penalty of $23,229.00. Excel Mining appealed the ALJ’s decision in
an attempt to show that the interpretation of the relationship between the
regulations governing penalty calculations and the statutory term "unwarrantable
failure" is unreasonable.

This
case boiled down to an issue of agency deference.
The Secretary's interpretation of an ambiguous provision of the Federal Mine
Safety and Health Act is entitled to deference so long as it is
reasonable.The Commission defines an "unwarrantable failure" as
"aggravated conduct[] constituting more than ordinary negligence." An ALJ must
look at "all the facts and circumstances of each case"to determine if the violation was so aggravated as to
constitute an "unwarrantable failure." As the Secretary points out, there is
ample support in the record for the ALJ's finding of aggravated conduct: the
roof control plan violation was extensive and obvious; the company had been
cited for the same violation eleven days before the inspection and warned that
repeated violations would result in heightened sanctions; and the safety
implications were grave.

The
court held that the regulations required the ALJ to adjust the negligence
finding to "moderate negligence" because he found a single mitigating
circumstance: that the mining company had moved mining equipment out of one of
the areas of the mine that had been made unsafe by the mining company's failure
to comply with its roof control plan. However, that finding did not need to
preclude the separate,
forward-looking decision to impose heightened oversight under§ 814(d) when the
record showed that aggravating factors predominated. Thus, because the court did
not find that the ALJ's decision, as adopted by the Commission, was arbitrary,
capricious, an abuse of discretion, or otherwise not in accordance with
law,5 U.S.C. § 706(2)(A),
the court denied the petition for review in case number
12-1138.